About the author(s):
Marcos Kotlik is the Academic Coordinator of the Observatory of IHL at the University of Buenos Aires (UBA), and a PhD in International Law candidate at the Graduate Institute of International and Development Studies. He holds a Law Degree and a Masters in International Relations from UBA, and an LLM from the University of Michigan Law School. He is a co-editor of International Humanitarian Law and Non-State Actors.
The situation of children affected by armed conflict (CAAC) has been one of the UN’s priorities when engaging with the parties to the conflict in South Sudan. Since 2012, several action plans were adopted within the UN’s CAAC framework, in order to end and prevent the recruitment and use of children and other violations. In the last five years, more than 3,500 children were released and reintegrated to civilian life; however, a few days ago UNICEF announced that it lacked the funds – an estimate USD 2,000 per child – to continue providing support, in particular for 900 former child soldiers now registered for release. This incident is not isolated, but a reflection of various limitations that affect the CAAC framework.
The UN’s framework focuses (paras. 67-68) on six grave violations committed against children: killing or maiming; recruiting or using child soldiers; attacks against schools or hospitals; rape or other forms of grave sexual violence; abduction; and denial of humanitarian access. Through a Monitoring and Reporting Mechanism (MRM), set up by the Secretary-General and endorsed by the Security Council, information is gathered at the country level, reviewed and integrated at headquarters, and then published in various UN reports. A Working Group on CAAC, composed by all Security Council members, reviews the reports and makes recommendations to the Council on possible measures to promote the protection of children. As to States and non-State armed groups (NSAGs) that commit one or more violations and are listed by the Secretary-General, the Security Council calls them to engage in dialogue in order to negotiate action plans. Building on the ideas developed in a recently published book chapter, this post provides an overview of certain features that make this framework a useful strategy to address non-compliance with humanitarian rules, especially by NSAGs. It then highlights the obstacles that the framework must overcome in order to be ultimately successful, in South Sudan and beyond.
A strategy to improve compliance through dialogue and cooperation
One of the CAAC framework’s main objectives is for non-compliant parties to develop and adopt actions plans that will lead to compliance with international obligations through the undertaking of specific and time-bound steps. This requires a concerted effort of persuasion by UN personnel and other humanitarian actors, which has particular features that make it especially appropriate as a strategy to address non-compliance by NSAGs.
First, much like engagement strategies employed by the ICRC, NGOs such as Geneva Call, and even some States (see e.g. here, here, here and here), the CAAC framework is a practical approach, based on dialogue and cooperation. It entails a recognition that NSAGs have multiple reasons to respect humanitarian rules and, by the same token, that non-compliance is often not the reflection of unwillingness (see e.g. here, here, here, here and here). Thus, it identifies NSAGs’ willingness where it already exists, and it seeks to increase their interest in complying with international law. For incentives to work, the framework takes into account the varying circumstances of armed conflicts, including NSAGs’ military structure, size, modus operandi and other characteristics (para. 15).
Second, the CAAC framework ensures transparency in the production of information about the parties’ performance in relation to humanitarian rules. On the ground, UN personnel already deployed (e.g. from UNHCR, OHCHR, UNDP, UNICEF or UNDPKO) and partner NGOs receive and vet information from the parties to the conflict and other relevant actors, including local communities and civil society organizations. At headquarters, the UN Special Representative of the Secretary-General (SRSG) for CAAC reviews and consolidates information, in a process that also involves governments, regional organizations, the ICRC and NGOs (here, para. 93). The participation of multiple stakeholders, including NSAGs themselves, creates opportunities for coordination among actors, and makes it easier for NSAGs to accept decisions to include or remove parties from the Secretary-General’s lists (even if these decisions have also received some criticism). Since States are also subject to listing (see, e.g. the lists annexed to the 2019 report, including State forces and NSAGs in Myanmar, South Sudan, and Syria), this gives NSAGs some reassurance before engaging in a process led by an institution created exclusively by States.
Third, reports produced by the Secretary-General and the SRSG may spark different actions to help identify and clarify obligations in relation to the protection of children, that is, to settle disputes – this is, in particular, the goal of action plans within the CAAC framework. The mechanism, triggered by naming and shaming, is based on the parties’ desire for acceptance at the national and international level, the influence of public exposure, and the possibility of being held accountable (para. 77). By enabling NSAGs’ participation in the negotiation of action plans, the framework involves them in the reaffirmation and development of the law, helping to create a sense of ownership that can boost their willingness to comply (see e.g. here and here). Moreover, it can be appealing for NSAGs to undertake humanitarian commitments if it will make them seem as more respectful of international rules than their ‘enemy’ (see e.g here). While there is always a risk that action plans are not adopted out of a sincere wish to respect humanitarian rules, this problem is not exclusive to NSAGs, and in any case the MRM is designed to monitor compliance before any party can be delisted.
Fourth, action plans also allow for the adoption of capacity-building measures so that the parties to armed conflicts can actually abide by the law. On the one hand, NSAGs’ leadership can translate humanitarian undertakings into specific instructions that their members are capable of implementing, for instance, through codes of conduct or internal orders. On the other hand, action plans can be supported by other actors that can assist through dissemination activities or training programs. For instance, the action plan signed by the Moro Islamic Liberation Front (MILF) in 2009 contained commitments in partnership with UNICEF in order to provide training and advocacy on child protection and child rights, as well as technical support for the establishment of child protection units within the Bangsamoro Islamic Armed Forces, among others. Furthermore, capacity-building measures can also reach local communities, civil society organizations, and national agencies, strengthening children protection networks, and ensuring local ownership and sustainability (para. 81).
How do States halt engagement strategies?
Overall, the UN’s CAAC framework has the features of a predominantly managerial approach to non-compliance, as it is focused on cooperation and problem-solving, prioritizing dialogue. By using political pressure rather than legal sanction, the framework has had a moderate success in promoting compliance through the adoption of action plans: 32 plans have been signed – the majority of them by NSAGs, such as two groups in the Central African Republic and one in Syria in 2019. Moreover, 12 parties have fully complied and achieved delisting, including e.g. the MILF in Philippines, and several groups in Côte d’Ivoire that had signed action plans in 2006. As highlighted by the UN Secretary-General, however, in 2018 there were 24,000 verified cases of violence against conflict-affected children, and 12,000 children were killed or maimed during armed conflict – the highest number since the UN SRSG position was created in 1996.
While many factors may curb attempts to reduce the effects of armed conflict on children, one that especially affects the CAAC framework is the limitation of the UN’s autonomous role by different instances of State control. Indeed, the framework is based on a complex scheme of cooperation that depends on the effective interaction between multiple actors and stakeholders. In this context, UN personnel play a key coordination role, promoting and enabling participation, acting as managers and referees of the MRM, and bearing responsibility for its results. If they are prevented from performing this role, the framework’s effectiveness is challenged.
Some limitations arise from State sovereignty, which enables the exertion of important levers of power that can slow down or even halt the MRM process. Sometimes governments do not allow timely access to conflict-affected areas, as reported in different instances by the UN Secretary-General with regard to Chad, Colombia, Myanmar, the Philippines, Sudan, and Thailand (see e.g. here, para. 150; here, paras. 113, 118, 163; here, para. 204; here, paras. 178, 186, 261). Other times they are hesitant to allow some or all forms of engagement between NSAGs and humanitarian actors, expressing concerns about the former’s legal and political status (see e.g. here, para. 158; here, para. 147; here, para. 15; here, para. 29; here, paras. 77, 192; here, para. 111; here, para. 132; here, paras. 134, 139, 142; here, p. 19).
Other ways in which States may limit the outcomes of the framework is through ingrained institutional practices. For instance, the Working Group on CAAC holds its meetings in closed sessions where the concerned States may be invited to participate (see here, para. V), and it has shown delays when dealing with some country reports (see here, pp. 366-67, 375), as well as reluctance to recommend actions against certain parties that are considered persistent violators (see here, p. 370). In fact, the Security Council has had scarce recourse to the imposition of sanctions for parties that fail to adopt action plans, or to abide by them once adopted (see here, pp. 36-37).
Finally, the type of limitation recently observed in South Sudan is that of budgetary constraints. That States have not been providing sufficient resources and funding for the CAAC framework, including for UN actors, its local and international partners, and national governments in need, has been a concern for many years, mentioned in UN Secretary-General reports throughout the last decade and even in some UN Security Council resolutions (see e.g. here, paras. 13-14; here, para. 15). It is self-evident that without proper funding, it is not possible to ensure long-term sustainability and viability of the measures required by the framework, including the monitoring and implementation of action plans.
Final remarks: Is it possible to overcome limitations?
To strengthen the CAAC framework, it is key to overcome State reluctance to allow engagement with NSAGs, and to increase the framework’s budget. As suggested by Roberts and Sivakumaran, the benefits of engaging with NSAGs appear to be much higher than the risks perceived by States. Maintaining creative cooperation with NSAGs requires more personnel, training, and further specialization. To overcome the framework’s limitations, the capacity of the UN and other actors to interact and adapt to the changing circumstances of contemporary armed conflicts can no longer be subject to the interests and political goals of individual States. Without appropriate funding, as shown by the current situation in South Sudan, many of the benefits of the framework will simply fade out.